Abortion continues to be the single most divisive health law issue. While the basic framework of Roe v. Wade remains is intact, state legislatures continue to pass laws restricting abortion to test the United States Supreme Court's willingness to create exceptions to an unlimited right to choose an abortion. In the last few years the state legislative agenda has focused on intact dilation and extraction (D&X), the so called "partial-birth abortion" - the partial delivery of a very late term fetus prior to dismemberment. This is a very controversial procedure because it is often done near or past the time of earliest viability and looks very much like infanticide to its opponents. These factors put it on the very edge of Roe v. Wade protections and have encouraged many states to outlaw it in the belief that it falls into the area of regulation that Roe left to the states.
The Nebraska law was the first law to reach the United States Supreme Court, in the case of Stenberg v. Carhart. This law banned intact D&X except when necessary to preserve the life of the mother. Dr. Leroy Carhart is a Nebraska physician who performs abortions in a clinical setting. He brought this lawsuit in federal district court seeking a declaration that the Nebraska statute violates the federal Constitution, and asking for an injunction forbidding its enforcement. He argued that the statute failed the Roe v. Wade test because it did not include an exception for protecting the health of the mother, and because the definition of the procedure was ambiguous and could also apply to other commonly used early term abortion techniques. After a trial on the merits, during which both sides presented several expert witnesses, the district court held the statute unconstitutional. The Eighth Circuit Court of Appeals affirmed and the United States Supreme Court accepted the case for review.
The court began with a simple statement of the Roe v. Wade principles of review for cases regulating abortion:
First, before viability...the woman has a right to choose to terminate her pregnancy. Second, a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability is unconstitutional. Third, subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The Nebraska law at issue is simple:
No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
The statute defines "partial birth abortion" as: "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." It further defines "partially delivers vaginally a living unborn child before killing the unborn child" to mean: "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child." Violation of the law is a Class III felony and results in automatic revocation of the physician's medical license.
The key issue in the case was resolved by the trial judge:
The upshot is a District Court finding that D&X significantly obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so, a division of opinion among some medical experts over whether D&X is generally safer, and an absence of controlled medical studies that would help answer these medical questions. Given these medically related evidentiary circumstances, we believe the law requires a health exception.
The court could have declared the statue unconstitutional on its face for not providing an exception for protection of the health of the mother and for using an overbroad definition of the procedure and thus putting at risk physicians performing abortions that clearly are constitutionally-protected. Rather than deferring to the fact finding of the District Judge, Justice Breyer chose to retry the factual details of the case:
Because Nebraska law seeks to ban one method of aborting a pregnancy, we must describe and then discuss several different abortion procedures. Considering the fact that those procedures seek to terminate a potential human life, our discussion may seem clinically cold or callous to some, perhaps horrifying to others. There is no alternative way, however, to acquaint the reader with the technical distinctions among different abortion methods and related factual matters, upon which the outcome of this case depends. For that reason, drawing upon the findings of the trial court, underlying testimony, and related medical texts, we shall describe the relevant methods of performing abortions in technical detail.
The result is an extremely-detailed description of medical procedures, written by judges and clerks and based on information from advocacy briefs. The court's analysis is particularly forced when dealing with the epidemiology of late term abortions in general and partial birth abortions in specific, because the data about these procedures are notoriously unreliable. More critically, the court concluded that the statute fails because it does not include an exception for the health of the mother and because its definition of partial-birth abortion is vague and over broad - conclusions that are clear from the face of the statute and from the district court's factfinding - and do not depend on the court's detailed recitation of the clinical aspects of abortion.
Justice's Steven's concurrence cuts to the heart of the issue:
Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of "potential life" than the equally gruesome procedure Nebraska claims it still allows. . . . the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.
Justice O'Connor's concurrence makes it clear that this is a limited ruling and that she would view very differently a law with a limited definition of the banned procedure and an exception for the health of the mother. Since this is a 5-4 decision, this implies that such a law would be found constitutional by this court.
The decision predictably drew lengthy and heated dissents. Justice Scalia reiterated his position that Casey was wrongly decided and that the undue burden test is unworkable in practice because it admits of no scale for balancing other than the individual values of the Justices as opposed to those of the elected state legislatures. The other dissents saw this case as an improper application of Casey, in that Nebraska is not banning abortions but only limiting the use of one type of procedure. The dissenting judges find that with no convincing evidence that this procedure is safer than the allowed alternatives, the state has the right to enact this law as an appropriate balancing of the woman's and the state's interests, as allowed by Casey. Since this is a facial challenge, the dissents would allow the state the right to show by enforcement that the definition of the procedure is not overly broad and does not ban more common procedures.
The dissents make a strong argument against abortion exceptionalism, i.e., they point out that in other contexts the court has and does allow significant restrictions on the physician's right to provide medical treatment, even in the face of expert testimony that to do so might adversely affect the health of the individual, citing the classic public health case, Jacobson v. Massachusetts, 197 U. S. 11 (1905). Unfortunately for the dissent, it is clear that abortion has been treated by the court as an exceptional situation, one in which the court rejects the usual premises underlying the state authority to regulate both medical practice and to protect the public health and safety. This is an irreconcilable conflict - applying traditional legal standards for police power to abortion would defeat Roe v. Wade, and applying the standards of this case to all regulation of medical practice and public health would intolerably restrict the state's regulatory powers.
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